Monday, June 17, 2013

UPDATE: Test case needed to establish standard applicable to "alterations" of artistic works under the CDPA

LONDON. In my last post I discussed how a false attribution claim under section 84(6) of the CDPA might be used by an artist in the UK to effectively disown an artwork in much the same way as Cady Noland recently did by exercising her moral rights under VARA.

One of the issues raised by plaintiff's counsel in the Jancou-Noland dispute was whether it is appropriate for federal legislation to give artists discretion to determine what constitutes a "distortion, mutilation, or other modification" of their work given the precarious situation in which art market participants are placed as a result. Having made the link between the right of attribution relied on by Noland and section 84(6) of the CDPA, it seemed pertinent to go on to discuss the standard a court would apply to determine whether an artistic work has been "altered" for purposes of a false attribution claim under subsection six. My personal view was that the standard would be objective (see here) but further research was required given the CDPA's vagueness in this regard. I have now conducted such research as well as consulted with the Institute of Art and Law and it appears that, absent an amendment to the CDPA, a test case is needed to ascertain the standard applicable (the repercussions for consignments/ownership of art being far greater of course were the standard to be subjective). The CDPA in its protection of moral rights needs to strike a balance between authorship rights of creators of artistic works and personal property rights and in my opinion, an objective standard would help to achieve such balance as there are no other safeguards in this specific part of the act to prevent potential abuse (unlike in section 80 where you have the (objective) "reputational harm" safeguard).

The act of disowning art might seem like a strictly US phenomenon (Richard Prince is another artist known to have repudiated his earlier work) but it's worth bearing in mind that moral rights were only recently introduced in the UK and artists may pursue these personal and non-transferable rights far more vigorously in the not-so-distant future.

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Art Meets Lawis a blog dedicated to the most noteworthy legal developments affecting the global art market today and in particular London and New York. Now that the author is permanently based in London (and given the dearth of art law blogs this side of the Atlantic), the focus will be primarily on English rather than New York law. Areas covered range from commercial contracts, consignments to auction, art investment funds, loans against art, artists' rights (copyright, droit de suite, moral rights), import and export and taxation, among others, but always with the following aim in mind: to cater to the interests and concerns of market participants transacting in art, whether on the buy-side or the sale-side.

The blog also features a series of posts titled "ART PICK OF THE MONTH" where the author reviews an exhibition, book or other artistic expression considered to be the highlight of that month.

About Me

I am a dual-qualified corporate lawyer with a lifelong passion for the visual arts and its intersection with the law.
All the views expressed on this blog are exclusively those of the author and no one else's.